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Court of AppealAllowedCivil Appeal No. 266 of 2014· [2017] KECA 786 (KLR)

Vincent Barasa Khayoni & 12 Others v Talitia Medical Training College & 7 Others

Court of Appeal
16 February 2017
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
1,377 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal reinstated a land petition struck out over a missing witness affidavit, ruling that striking out was too harsh where no one was prejudiced.

What this practically means

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Executive summary

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The appellants, thirteen petitioners, appealed against an order of the High Court at Bungoma (A. Omollo, J.) dated 26th June 2014 striking out their constitutional petition, in which they sought to restrain their eviction from land known as Title Number West Bukusu/South Mateka/970, allegedly wrongly registered in the names of the 1st and 2nd respondents. On the hearing date the appellants' advocate sought an adjournment because their witness was unavailable; the Judge declined and gave them until noon to prosecute the case. The appellants then presented Calistus Kundu Murefu, the 8th petitioner, as a witness, but the respondents objected that he had sworn no affidavit or statement. Upholding the objection, the Judge held he must first record a statement or swear an affidavit, and when leave to file one was sought, the Judge treated this as an adjournment through the back door and struck out the petition for non-attendance of a witness. The Court of Appeal held that the Judge was right that, for purposes of fair hearing, the intended witness should have recorded a statement or sworn an affidavit to allow the respondents to prepare for cross-examination. However, since there was no indication the affidavit would differ materially from that sworn by the 1st petitioner on behalf of all petitioners, no prejudice would have been suffered by the respondents. Although adjournment was a matter of discretion, the drastic order striking out the petition was erroneous. The appeal was allowed, the striking-out order set aside, the petition reinstated for hearing before any Judge other than A. Omollo, J., with costs of the appeal to the appellants.

Key legal issues

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01

Whether striking out the petition for non-attendance of a witness was justified

Holding

The order striking out the petition was erroneous because the intended witness was a petitioner in his own right and no prejudice would have been suffered by the respondents had he been allowed to swear an affidavit.

Reasoning

Calistus Kundu Murefu was the 8th petitioner and was present in court. The court accepted that fairness required him to record a statement or swear an affidavit before testifying, so the respondents could prepare for cross-examination. However, there was no indication his affidavit would differ materially from the one sworn by the 1st petitioner on behalf of all petitioners. Granting him an opportunity to swear an affidavit, possibly adopting the existing affidavit, would not have prejudiced the respondents. Striking out the petition was therefore a drastic and erroneous response.

p. 4
02

Whether a petitioner may testify without a recorded statement or affidavit

Holding

A petitioner who is to testify must first record a statement or swear an affidavit so that the opposing party has an opportunity to prepare for cross-examination.

Reasoning

The Court of Appeal endorsed the High Court's view that allowing a witness to testify orally without any prior statement or affidavit would ambush the respondents with evidence they had no opportunity to consider, contrary to the right to a fair hearing. The requirement is a procedural safeguard for fair hearing, not a bar to the petitioner testifying; the error below lay in the drastic consequence drawn from it, not in the requirement itself.

p. 4

Legal principles established

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  • Although adjournment is a matter of judicial discretion, striking out a petition for non-attendance of a witness is a drastic order that is erroneous where no prejudice would be occasioned to the other side.
  • A party to a petition who is to testify should record a statement or swear an affidavit to enable the opposing party prepare for cross-examination, in the interest of a fair hearing.

Court orders

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  1. 1.Appeal allowed
  2. 2.Order of the High Court given on 26th June 2014 striking out the petition set aside
  3. 3.Petition reinstated for hearing before any Judge other than A. Omollo, J.
  4. 4.Appellants to have the costs of the appeal

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 19, 20, 21, 22, 23, 25, 27, 29, 39, 40, 47, 48, 61(1), 67(e)
  • Land Acquisition Act Cap 295Section 8
  • National Land Commission Act No. 5 of 2012Sections 5(1)(e)(f) and 6
  • Constitution of Kenya (Protection and Fundamental Rights and Freedoms of the Individual) Practice and Procedure Rules 2006Rules 10 and 11
  • Constitution of Kenya 2010, Sixth ScheduleRule 19
On appeal from
High Court of Kenya at Bungoma
Petition No. 5 of 2013
Jurisdiction invoked
First appeal against an order of the High Court striking out a constitutional petition (Articles 22, 23 and 165 of the Constitution invoked in the matter; appeal as of right from the High Court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Vincent Barasa Khayoni & 12 Others v Talitia Medical Training College & 7 Others", Case Analysis (2017). Civil Appeal No. 266 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/786/eng@2017-02-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.